IT Law a Threat to Free Speech

The detention of two women over a message posted on Facebook earlier this week sparked strong responses, raising questions about the right to freedom of expression in India.

Several legal experts, activists and politicians say that at the heart of the problem is a controversial law: Section 66a of India’s Information Technology Act, under which the two women were charged.

Police detained and charged both women on Monday after one of them, 21-year-old Shaheen Dhada, posted a message that questioned why Mumbai effectively shut down for a day for the funeral of Hindu right-wing leader Bal Thackeray. The other woman clicked the “Like” button under her comment. Both were released on bail later in the day.

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Section 66a, which was included in India’s IT act through a 2008 amendment, says that offensive information shared through a computer or other devices can be considered a crime. But what constitutes offensive content under the act is unclear, critics say.

The Facebook case is the latest example of how even mild criticism on social media is landing people in jail under Section 66a, critics add.

Earlier this year, police in Mumbai charged political cartoonist Aseem Trivedi under Section 66a for spreading offensive material online. Mr. Trivedi, who likened the national Parliament to a toilet, was also accused of sedition, a charge that was later dropped. Earlier this month, police charged an Indian man for posting material on his Twitter account that alluded to the wealth of a cabinet minister’s son.

“It’s problematic because it’s extremely vague,” Apar Gupta, a lawyer based in Delhi who specializes on free speech, says of Section 66a.

The section uses terms like “grossly offensive,” “menacing” and “causing annoyance or inconvenience” to describe the kind of content that could be considered criminal. These terms are never defined, however, allowing plenty of room for interpretation.

India’s Constitution upholds the right to freedom of speech, but with conditions: Article 19 (2) says that “reasonable restrictions” to this right apply, including in the interests of national security and public order. As a result, free speech in India is not an absolute right.

Some experts say Section 66a of the IT Act is especially problematic for freedom of speech. “It has the potential of becoming a dangerous tool that can be used to gag legitimate free speech online,” says Pavan Duggal, a lawyer who specializes in cybercrime.

Earlier this month, a court in the southern Indian city of Chennai began reviewing a petition filed by a free speech activist, A. Marx, challenging the constitutionality of Section 66a. “Our judiciary needs to repeal or drastically amend this act,” said Mr. Marx, who believes it has been used as a weapon to stifle dissent against the government.

In response to the Facebook incident, Milind Deora, junior minister for information technology, described sections of the IT Act as “draconian.” Speaking Tuesday on television channel NDTV, Mr. Deora condemned the detention of the two girls and said the government was open to address how to avoid the misuse of the act, while guaranteeing a legal recourse against defamation.

Despite the overwhelming show of support – from politicians, news organizations and users of social media - the two women have appeared shaken by their ordeal.

Ms. Dhada apologized for posting the comment. “I had no intention of offending anyone,” she told NDTV Tuesday. The case against them was filed by a member of Mr. Thackeray’s Shiv Sena party, whose supporters regularly have been involved in violent incidents in Mumbai. Her face shrouded by a headscarf, she described Mr. Thackeray as “a really great guy.”

Mr. Thackeray, who died over the weekend at the age of 86, rose to prominence in Mumbai by championing the rights of local Hindus in the city’s Maharashtra state over Muslims and immigrants from elsewhere in the country. More than 100,000 people attended his funeral on Sunday.

A police officer in Palghar, a town outside Mumbai where the case against the women was registered, said they arrested 10 people accused of vandalizing a hospital owned by Ms. Dhada’s uncle in connection to the Facebook post. Police are looking into whether the accused are affiliated to Shiv Sena. A party official declined to comment on the hospital incident, saying he did not know whether Sena members were involved.

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